The International Court of Justice, the United Nations’ highest judicial body, made history Monday when it ruled that the 1995 massacre of 8,000 Bosnian Muslim men and boys in Srebrenica was an act of genocide. This was the first time ever that a state was tried for genocide before the World Court. Bosnia had instituted the proceedings against Serbia and Montenegro over events during the 1990s war in the former Yugoslavia.

The 1948 Genocide Convention, a response to the Nazi Holocaust, categorizes genocide as a crime under international law. It obligates states to prevent and punish acts of genocide. For a finding of genocide, the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group” must be proven. This creates a high legal threshold.

After 10 months of deliberation, the 15- member World Court clarified the definition of genocide and found that Serbia had violated its treaty obligations by failing to prevent genocide. It determined that although Serbia had “known influence” over the Bosnian Serbs who “devised and implemented the genocide in Srebrenica,” it had “manifestly refrained” from using this influence.

The court also found that Serbia had violated the genocide treaty by failing to punish the perpetrators and failing to hand over General Ratko Mladic to the U.N. war crimes tribunal in The Hague. Mladic, under indictment by the tribunal, led the Bosnian Serb army attack against Srebrenica and is known to be hiding out in Serbia. The World Court called upon Serbia to take immediate steps to surrender him to the Hague tribunal. Based on the court’s ruling that genocide was committed, he will likely be found guilty of genocide as he faces trial before the tribunal.

The court found that although Serbia financed and supported the Bosnian Serb military, it did not exercise effective control over the operations of the Bosnian Serb army and the paramilitary units responsible for the massacre at Srebrenica. Consequently, Serbia was found not guilty of having committed genocide. Nor were the Srebrenica massacres, which were found to constitute the crime of genocide, committed “on the instructions or under the directions” of Serbia. The court also found Serbia not guilty of having conspired to commit genocide, inciting the commission of genocide, or being complicit in genocide. Thus, it found that Serbia was not liable for reparations to Bosnia.

The court held that while there was evidence that massive killings occurred throughout the territory of Bosnia and Herzegovina during the war, it did not conclusively establish that those killings of Muslims in Bosnia were committed with the specific intent on the part of the perpetrators to destroy the group, in whole or in part. Hence, it was not genocide.

Furthermore, although the Bosnian Muslims were subjected to systematic massive mistreatment, beatings, rape and torture causing serious mental and bodily harm during the conflict, especially in detention camps, the court did not find it proven that those atrocities and acts of “ethnic cleansing” were committed with the specific intent to destroy the Bosnian Muslims in whole or in part.

Hence, the court found that these atrocities may amount to war crimes and crimes against humanity but they did not qualify as genocide.

In response to the court’s judgment, the pro-Western president of Serbia, Boris Tadic, urged the Serbian Parliament to condemn the Srebrenica massacre and to hand Mladic over to the Hague tribunal. He cautioned that “dramatic political and economic consequences” could occur if Serbia fails to cooperate with the tribunal. Serbia wishes to join the European Union and the negotiations are suspended over this issue.

With this decision, the court has strengthened international law and established an important precedent: A state that is in a position because of its influence and authority to prevent genocide must act to stop it. Under the broad implications of this rationale, for example, Sudan is responsible to halt the genocide in the Darfur region, where, with its backing, the Arab janjaweed militia has burned villages, committed mass rapes, killed nearly 400,000 people, and forced 2 million to flee as internally displaced or as refugees into Chad.

Ved P. Nanda (vnanda@law.du.edu) is director of the International Legal Studies Program at the University of Denver.

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